[2020] KEELC 2590 (KLR)
The court found that although there was no certificate of delay, the application for extension of time was filed only about 12 days after the lapse of the appeal period. The delay was not inordinate, and the applicant had explained that the typed proceedings were supplied after the expiry of the appeal period. The...
Source-derived case information.
- Citation
- [2020] KEELC 2590 (KLR)
- Parties
- Applicant: Sheriff Ibrahim Farah; Respondent: Kamenchu M’Mingaine; Respondent: M’Mburunga
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 72 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
- Outcome
- Application allowed with costs to respondents.
- Legal Topics
- Extension of Time to Appeal, Certificate of Delay, Typed Proceedings, Merits of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sheriff Ibrahim Farah
Applicant
Kamenchu M’Mingaine
Respondent
M’Mburunga
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has provided sufficient cause to warrant extension of time to file an appeal out of time.
- 2 Whether the absence of a certificate of delay is fatal to the application.
- 3 Whether the delay in filing the appeal is inordinate.
Ratio Decidendi
The court found that although there was no certificate of delay, the application for extension of time was filed only about 12 days after the lapse of the appeal period. The delay was not inordinate, and the applicant had explained that the typed proceedings were supplied after the expiry of the appeal period. The court exercised its discretion to allow the application, finding that the short delay was excusable and that the interests of justice would be served by granting leave to appeal out of time, subject to the applicant filing the appeal within 45 days and paying costs to the respondents.
Court Disposition
Application allowed with costs to respondents.
Orders
- Leave is granted to the applicant to file an appeal out of time against the judgment of E. Mbicha SRM delivered on 18.9.2019 in Meru CMCC No. 381/11.
- The appeal must be filed within 45 days from the date of this ruling.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
MISC. APPL NO. 72 OF 2019
SHERIFF IBRAHIM FARAH .....................APPLICANT
VERSUS
KAMENCHU M’MINGAINE............1ST RESPONDENT
M’MBURUNGA ................................2ND RESPONDENT
RULING
1. Vide the application dated 30. 10. 2019, the applicant is seeking orders to file an appeal out of time against the judgment of E. Mbicha SRM delivered on 18. 9.2019 in Meru CMCC No. 381/11.
2. The application is premised on the grounds set out on the face of it and in the affidavit of the applicant. The applicant contends that after judgment was delivered, they applied for typed proceedings which were supplied on 23. 10. 2019 after the expiry of the required time to appeal.
3. The respondents have opposed the application vide the replying affidavit of the 2nd respondent dated 31. 1.2020. The respondents contend that the document requesting for typed proceedings is a forgery, that the draft memorandum of appeal does not raise arguable issues, that there is no certificate of delay from the Deputy Registrar and that applicant has not demonstrated how he stands to be prejudiced if the application is not allowed.
4. I have considered all the issues raised herein. I have not seen any certificate of delay. However, I have taken into account that this application was filed on 31. 10. 2019. The judgment having been delivered on 18. 9.2019, the appeal was supposed to have been filed by 18. 10. 2019. The delay was just a matter of days, 12 or so. That delay is not inordinate.
5. I thus find that the application is merited. The same is allowed but with costs to respondents. The appeal to be filed within 45 days.
DATED, SIGNED AND DELIVERED AT MERU THIS 30TH DAY OF APRIL, 2020
HON. LUCY. N. MBUGUA
ELC JUDGE
ORDER
The date of delivery of this ruling was given to the parties at the conclusion of the hearing and by a fresh notice by the Deputy Registrar. In light of the declaration of measures restricting court operations due to the COVID-19 pandemicand following the practice directions issued by his Lordship, the Chief Justice dated 17th March, 2020 and published in the Kenya Gazette of 17th April 2020 as Gazette Notice no.3137, this ruling has been delivered to the parties by electronic mail. They are deemed to have waived compliance with order 21 rule 1 of the Civil Procedure Rules which requires that all judgments and rulings be pronounced in open court.
HON. LUCY N. MBUGUA
ELC JUDGE